[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38689-38691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18583]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 946


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Notice of decision.

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SUMMARY: OSM is announcing its decision on initial enforcement of 
underground coal mine subsidence control and water replacement 
requirements in Virginia. Amendments to the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA) and the implementing Federal 
regulations require that underground coal mining operations conducted 
after October 24, 1992: Promptly repair or compensate for subsidence-
caused material damage to noncommercial buildings and to occupied 
dwellings and related structures and promptly replace drinking, 
domestic, and residential water supplies that have been adversely 
affected by underground coal mining. After consultation with Virginia 
and consideration of public comments, OSM has decided that initial 
enforcement in Virginia will be accomplished through State enforcement.

EFFECTIVE DATE: July 28, 1995.

FOR FURTHER INFORMATION CONTACT: Douglas E. Stone, Acting Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, P.O. Drawer 1217, Big Stone Gap, Virginia 24219, 
Telephone: (703) 523-4303.

SUPPLEMENTARY INFORMATION:

A. The Energy Policy Act

    Section 2504 of the Energy Policy Act of 1992, Pub. L. 102-486, 106 
Stat. 2776 (1992) added new section 720 to SMCRA. Section 720(a)(1) 
requires that all underground coal mining operations promptly repair or 
compensate for subsidence-caused material damage to noncommercial 
buildings and to occupied residential dwellings and related structures. 
Repair of damage includes rehabilitation, restoration, or replacement 
of the structures identified in section 720(a)(1), and compensation 
must be provided to the owner in the full amount of the reduction in 
value of the damaged structures as a result of subsidence. Section 
720(a)(2) requires prompt replacement of certain identified water 
supplies if those supplies have been adversely affected by underground 
coal mining operations.
    These provisions requiring prompt repair or compensation for damage 
to structures, and prompt placement of water supplies, went into effect 
upon passage of the Energy Policy Act on October 24, 1992. As a result, 
underground coal mine permittees in States with OSM-approved regulatory 
programs are required to comply with these provisions for operations 
conducted after October 24, 1992.

[[Page 38690]]


B. The Federal Regulations Implementing the Energy Policy Act

    On March 31, 1995, OSM promulgated regulations at 30 CFR Part 817 
to implement the performance standards of sections 720(a)(1) and (2) of 
SMCRA (60 FR 16722).
    30 CFR 817.112(c)(2) required in part that:

    The permittee must promptly repair, or compensate the owner for, 
material damage resulting from subsidence caused to any 
noncommercial building or occupied residential dwelling or structure 
related thereto that existed at the time of mining. * * * The 
requirements of this paragraph apply only to subsidence-related 
damage caused by underground mining activities conducted after 
October 24, 1992.

    30 CFR 817.41(j) requires in part that:

    The permittee must promotly replace any drinking, domestic or 
residential water supply that is contaminated, diminished or 
interrupted by underground mining activities conducted after October 
24, 1992, if the affected well or spring was in existence before the 
date the regulatory authority received the permit application for 
the activities causing the loss, contamination of interruption.

    Alternative OSM enforcement decisions. 30 CFR 843.25 provides that 
by July 31, 1995, OSM will decide, in consultation with each State 
regulatory authority with an approved program, how enforcement of the 
new requirements will be accomplished. As discussed in the April 7, 
1995, Federal Register (60 FR 17743) and as reiterated below, 
enforcement could be accomplished through the 30 CFR Part 732 State 
program amendment process, or by State, OSM, or joint State and OSM 
enforcement of the requirements.

    (1) State program amendment. If the State's promulgation of 
regulatory provisions that are counterpart to 30 CFR 817.41(j) and 
817.121(c)(2) is imminent, the number and strong underground mines 
that have operated in the State since October 24, 1992, is low, the 
number of complaints in the State concerning section 720 of SMCRA is 
low, or the State's investigation of subsidence-related complaints 
has been through and complete so as to assure prompt remedial 
action, then OSM will provide any to directly enforce the Federal 
provisions in the State. In this situation, the State would enforce 
its State statutory and regulatory provisions once it has amended 
its program to be in accordance with the revised SMCRA and to be 
consistent with the revised Federal regulations. This program 
revision process, which is addressed in the Federal regulations at 
30 CFR Part 732, is commonly referred to as the State program 
amendment process.
    (2) State enforcement. If the State has statutory or regulatory 
provisions in place that correspond to all of the requirements of 
the above-described Federal regulations at 30 CFR 817.41(j) and 
817.121(c)(2) and the State has authority to implement is statutory 
and regulatory provisions for all underground mining activities 
conducted after October 24, 1992, then the State would enforce its 
provisions for these operations.
    (3) Interim direct OSM enforcement. If the State does not have 
any statutory or regulatory provisions in place that correspond to 
the requirements of the Federal regulations at 30 CFR 817.41(j) and 
817.121(c)(2), then OSM would enforce in their entirety 30 CFR 
817.41(j) and 817.121(c)(2) for all underground mining activities 
conducted in the State after October 24, 1992.
    (4) State and OSM enforcement. If the State has statutory or 
regulatory provisions in place that correspond to some but not all 
of the requirements of the Federal regulations at 30 CFR 817.41(j) 
and 817.121(c)(2) and the State has authority to implement its 
provisions for all underground mining activities conducted after 
October 24, 1992, then the State would enforce its provisions for 
these operations. OSM would then enforce those provisions of 30 CFR 
817.41(j) and 817.121(c)(2) that are not covered by the State 
provisions for these operations.
    If the State has statutory or regulatory provisions in place 
that correspond to some but not all of the requirements of the 
Federal regulations at 30 CFR 817.41(j) and 817.121(c)(2) and if the 
State's authority to enforce its provisions applies to operations 
conducted on or after some date later than October 24, 1992, the 
State would enforce its provisions for these operations on and after 
the provisions' effective date. OSM would then enforce 30 CFR 
817.41(j) and 817.121(c)(2) to the extent the State statutory and 
regulatory provisions do not include corresponding provisions 
applicable to all underground mining activities conducted after 
October 24, 1992; and OSM would enforce those provisions of 30 CFR 
817.41(j) and 817.121(c)(2) that are included in the State program 
but are not enforceable back to October 24, 1992, for the time 
period from October 24, 1992, until the effective date of the 
State's rules.

    As described in items (3) and (4) above, OSM could directly enforce 
in total or in part the applicable Federal regulatory provisions until 
the State adopts and OSM approves under 30 CFR Part 732, the State's 
counterparts to the required provisions. However, as discussed in item 
(1) above, OSM could decide not to initiate direct Federal enforcement 
but rather to rely instead on the 30 CFR Part 732 State program 
amendment process.
    In those situations where OSM determined that direct Federal 
enforcement was necessary, the ten-day notice provisions of 30 CFR 
843.12(a)(2) would not apply. That is, when on the basis of a Federal 
inspection OSM determined that a violation of 30 CFR 817.41(j) or 
817.121(c)(2) existed, OSM would issue a notice of violation or 
cessation under without first sending a ten-day notice to the State.
    Also under direct Federal enforcement, the provisions of 30 CFR 
817.121(c)(4) would apply. This regulation states that if damage to any 
noncommercial building or occupied residential dwelling or structure 
related thereto occurs as a result of earth movement within an area 
determined by projecting a specified angle of draw from the outermost 
boundary of any underground mine workings to the surface of the land 
(normally a 30 degree angle of draw), a rebuttable presumption exists 
that the permittee caused the damage.
    Lastly, under direct Federal enforcement, OSM would also enforce 
the new definitions at 30 CFR 701.5 of ``drinking, domestic or 
residential water supply,'' ``material damage,'' ``non-commercial 
building,'' ``occupied dwelling and structures related thereto,'' and 
``replacement of water supply'' that were adopted with the new 
underground mining performance standards.
    OSM would enforce 30 CFR 817.41(j), 817.121(c) (2) and (4), and 30 
CFR 701.5 for operations conducted after October 24, 1992.
C. Enforcement in Virginia

    Virginia program activity, requirements, and enforcement. By letter 
to Virginia dated December 14, 1994, OSM requested information that 
would be useful in determining how to implement section 720(a) of SMCRA 
and the implementing Federal regulations in Virginia (Administrative 
Record No. VA-850). By letter dated January 13, 1995, Virginia 
responded to this request (Administrative Record No. VA-851).
    Virginia indicated that existing State program provisions at 
Sections 45.1-243 and 45.1-258 of the Code of Virginia are adequate 
State counterparts to section 720(a) of SMCRA. Virginia explained that 
it will enforce these State program provisions effective October 24, 
1992. Virginia also provided a copy of DMLR memorandum 6-93 concerning 
intermediate guidelines for implementing the Virginia law until 
implementing Virginia regulations are approved. Section 480-03-
19.817.121(c)(2) of the Virginia Coal Surface Mining Reclamation 
Regulations concerning subsidence control has been used by Virginia 
since December 26, 1990.
    OSM records show that approximately 325 underground coal mines have 
been classified as active in Virginia since October 24, 1992. Between 
October 24, 1992, and January 13, 1995, Virginia investigated 262 
citizen complaints alleging subsidence-caused structural damage or 
water supply loss or contamination as a result 

[[Page 38691]]
of underground mining operations. As of January 13, 1995, Virginia 
found that a violation of the Act existed on 35 of the complaints, no 
violation of the Act existed on 202 of the complaints, and technical 
reports and a final decision were pending on 25 complaints.
    On May 10, 1995 (Administrative Record Number VA-856), OSM met with 
the Virginia Division of Mined Land Reclamation (DMLR) to discuss 
implementation issues relative to the Energy Policy Act of 1992. At 
that meeting, OSM agreed with DMLR concerning the following 
interpretation of the Virginia program:
     Virginia has full statutory authority at section 43.1-258. 
of the Code of Virginia to require the replacement of drinking, 
domestic or residential water supplies contaminated, diminished or 
interrupted by underground mining activities conducted after October 
24, 1992.
     Virginia has full authority at section 480-03-
19.817.121(C)(2) of the Virginia Coal Surface Mining Reclamation 
Regulations to require the repair or compensation for damage to non-
commercial buildings and dwellings and related structures resulting 
from subsidence caused by underground mining activities conducted after 
October 24, 1992.
    Comments. On April 7, 1995, OSM published in the Federal Register 
(60 FR 17743) an opportunity for a public hearing and a request for 
public comment to assist OSM in making its decision on how the 
underground coal mine subsidence control and water replacement 
requirements should be implemented in Virginia. The comment period 
closed on May 8, 1995. Because OSM did not receive a request for one, 
OSM did not hold a public hearing. Following are summaries of all 
substantive comments that OSM received, and OSM's responses to them.
    One commenter (Administrative Record Numbers VA-862) asserted that 
the enforcement alternatives incorporating total or partial direct 
interim Federal enforcement (items (3) and (4) in section I.B. above) 
have no statutory basis in SMCRA and are not consistent with Congress' 
intent in creating section 720 of SMCRA. The party also commented that 
the waiving of ten-day notice procedures under direct Federal 
enforcement is not consistent with Federal case law. A second commenter 
adopted these comments by reference. OSM does not agree with the 
commenter's assertions, and it addressed similar comments in the March 
31, 1995, Federal Register (60 FR 16722, 16742-16745). These concerns 
about direct Federal enforcement are moot issues for Virginia because 
the Regional Director has decided, as set forth below, not to implement 
an enforcement alternative including direct Federal enforcement.
    Another commenter stated that the Virginia program currently has 
adequate counterpart provisions in place and has proper authority to 
implement the requirements of the Energy Policy Act of 1992 in Virginia 
(Administrative Record Number VA-860). The party also stated that 
Virginia's investigations of subsidence related complaints has been 
designed to ensure prompt remedial action. These investigations, the 
commenter asserted, have been deemed fair by both the mining industry 
and the affected public. The commenter concluded that initial 
enforcement of the requirements of the Energy Policy Act of 1992 in 
Virginia is already being accomplished by the Virginia program.
    One commenter requested ``interim direct OSM enforcement'' 
(Administrative Record Number VA-857). The commenter asserted that even 
though Virginia has statutory and regulatory provisions in place that 
are counterparts to the Energy Policy Act of 1992, Virginia provides 
inadequate protection for citizens residing in the coalfields. The 
commenter asserted that Virginia fails to attribute subsidence and 
water loss damages of any extent to underground coal mining operations. 
The commenter asserted that subsidence damages to the hydrologic regime 
and personal property (homes, ponds, outbuildings, etc.) are each 
looked at by the State as an isolated event rather than tied together 
to show the wide expanse of subsidence damage in Virginia. On March 10, 
1995 this same commenter requested that OSM conduct a review of the 
Virginia program to verify similar allegations. That review is 
currently being conducted by OSM and it will address the commenter's 
allegations concerning the Virginia program.
    Director's decision. Based on the information discussed above, the 
Director has decided that enforcement of the underground coal mine 
subsidence control and water replacement requirements in Virginia will 
be accomplished through State enforcement. The Director has made this 
decision after soliciting public comment and providing opportunity for 
public hearing (no requests for a hearing were received), and 
considering information provided by Virginia by letters dated January 
13, 1995, and May 26, 1995, and in discussions held with Virginia on 
May 4, 1995. The Director has concluded that under the Code of Virginia 
section 41.1-258, the State has full authority to require the 
replacement of drinking, domestic or residential water supplies 
contaminated, diminished or interrupted by underground mining 
activities conducted after October 24, 1992. In addition, Virginia has 
full authority at section 480-03-19.817.121(c)(2) of the Virginia Coal 
Surface Mining Reclamation Regulations to require the repair or 
compensation for damage to non-commercial buildings and dwellings and 
related structures resulting from subsidence caused by underground 
mining activities conducted after October 24, 1992.
    If circumstances within Virginia change significantly, the Director 
may reassess this decision. Formal reassessment of this decision would 
be addressed by Federal Register notice.

    Dated: July 24, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-18583 Filed 7-27-95; 8:45 am]
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